|
When thinking about ending your marriage, it is hard to consider small points of law and procedure. However, an understanding of divorce law is important to ensure a fair and equitable divorce settlement. This article describes basic Illinois law regarding divorce. Your best protection at this time is understanding divorce laws in your state and how they affect you. It is important to discuss your situation with a qualified and competent divorce lawyer, and chose an attorney to best represent your interests. While it may be tempting to act ”°nice”± to your soon-to-be-former spouse in hopes of reconciliation, you must remember to look be your own advocate.
Divorce is a lawsuit seeking to legally end the marriage contract and divide the property between the parties. The Illinois Marriage and Dissolution of Marriage Act (MDMA) contains all the laws pertaining to divorce in Illinois. A marriage can be dissolved in a number of ways. An annulment is legal declaration that the marriage is invalid. It can be granted if requested within 90 days of discovery in the case of mental incapacity or substance abuse. If any of the following conditions is met, an annulment may be granted within one year of discovering the information. These conditions include fraud, physical incapacity to engage in intercourse, use of duress of force to induce a marriage or a prohibited marriage. Lack of parental consent for those aged 16 or 17 is grounds for annulment if filed prior to attaining the age of 18.
Legal separation occurs when parties are living apart but are not seeking divorce. In this case, there can be no division of property, but reasonable support and maintenance can be awarded to one of the parties.
When a divorce is desired by either party, a petition must be filed with the court to begin the process. To file for divorce in Illinois, at least one of the parties must have lived in Illinois for a minimum of 90 days. The spouse who files for divorce is the Petitioner, the spouse receiving the filing is the Respondent.
A petition for divorce requires a reason, or grounds. In Illinois either party may file for divorce for any of the 12 reasons or grounds recognized by the Martial Dissolution Act. Illinois is a modified a no-fault state because one of the allowed grounds for divorce does not require proof that one spouse committed wrong doing. The most common reason for divorce is mental cruelty. Impotence, adultery, desertion of at least one year, substance abuse of two years duration, malice, physical or mental cruelty, attempted murder. Further grounds for divorce include a felony conviction or knowingly infection the other with a venereal disease. Irreconcilable differences is another commonly used grounds for divorce, and requires a period of living separately for two years and in some cases six months, an irretrievable breakdown in the marriage and failure of all attempts to reconcile. Any potential efforts to reconcile would be futile and not in the best interests of the family. [750 ILCS 5/401]. Interestingly, if the court feels there is a reasonable chance of reconciliation, counseling may be ordered.[750 ILCS 5/504]].
Once filed, the divorce petition neither spouse may harass, intimidate, harm or interfere with the liberty of the other spouse, or children. Children cannot be hidden within the state or taken out of the state without the permission of the . [750 ILCS 51501.1]
Several areas, described below, must be specified in a divorce decree. If the parties have no conflicts, an Agreed Order can be filed. However, that is a rare occurrence. In many cases, through counsel, conflicts can be settled and the divorce conditions ultimately agreed upon. Mediation by an unbiased professional can be useful in cases where there is disagreement. Be aware that the is both binding and non-binding mediation. In a binding arbitration or mediation, you are required to accept the decisions of the mediator. In a non-binding situation, you are not required to accept any conditions if you choose not to. Before agreeing to participate in mediation, you should be aware if you are entering into a binding situation. If no agreements can be made, the case must proceed to trial. In this situation, both parties present their case and the final outcome is decided by a judge. This is the most costly way to achieve a divorce.
Property
Most people think that all marital assets are split equally. The Illinois court must include a division of property in the divorce decree, but the amounts are not specified. A determination is made based on several factors, including the financial resource of each spouse and their respective ability to earn a living in future. Property settlement usually favors the party who is economially disadvantaged. The value of the assets used to calculate a settlement is taken on the date the divorce is finalized.
Maintenance
If there is a significant disparity between the financial circumstances of the parties, an order for alimony may be made. Illinois law determines the amount and duration of Maintenance is contingent on many factors. The duration of the marriage, the standard of living established during the marriage, the present and future earning capacity of each party are all considered by the court. Any impairment of earning capacity due to domestic duties or delayed education, training, employment, or career opportunities due to the marriage and the care taking needs of any children are also factors in determining maintenance.
Custody
If there are children are involved, a decision regarding custody must be made. Eight factors are considered when determining custody arrangements in Illinois 750 ILCS 5/602(a). Parental desires, the children's wishes if applicable, the child(ren)'s relationship to parents, siblings and other significant persons in the child's life, the child(ren)'s adjustment to home school and community, mental and physical health of all family members, any physical violence in the family system, any on going abuse, and the willingness of each party to foster a relationship between the child(ren) and the other parent.
A custody determination can be for joint or sole custody. Where the children reside or how much time they spend with each parent is somewhat independent of the type of custody. For example, if sole custody is awarded to the mother, the children may still have weekend visits with the father. The parent with sole custody will, however, make the majority or decision a bout the children's education and health and religious upbringing [750 ILCS 5/608(a)]. In joint custody, these major decisions are shared [750 ILCS 5/602.1].In Illinois, visitation can be ordered for siblings and grandparents [750 ILCS 5/607(b)].
When parents cannot agree on these arrangements, the court must intervene. Initially, a guardian ad litem, or Child's attorney is appointed to represent the child(ren)'s best interests and hopefully facilitate an agreement between the parents. This attorney is independent and court appointed. They may be private or part of the State's Attorneys office. These cost are paid by the parents as determined by the court in each case. In Lake county and by court order in other counties, parents must attend a two-hour education program detailing the impact of parental conflict on children.
If custody still cannot be settled, the court will appoint an evaluator to determine and report to the court what is in the best interests of the child [750 ILCS 5/604 and 605]. Custody evaluations are lengthy, costly and very emotionally draining for the children and parents.
Once an order regarding custody is made, it is very rare for the court to make changes in the following two years. This means that before you agree to custody arrangements, be sure you can live with the rules for at least two years. It is a mistake to agree, thinking you can return to court and make changes before two years pass. This occurs only in the most extreme conditions.
Child Support
When one parent earns substantially more than the other, an order of child support will be made by the court. The following factors are taken in to consideration in Illinois in this determination: the financial needs of the child, the resources and needs of the custodial parent, the standard of living the child would have lived if there had been no divorce, the physical emotional and education needs of the child, and the needs and resources of the non-custodial parent.
The amount of child support is in part determined as a percentage of the parent's income. For one child, it can be as high as 20% of the parents after-tax income, for two children 28%. For each additional child, the percentage is incrementally increased. Decisions about child support can always be changed if the parents' financial circumstances change. In case where parents remarry, preference is given to the children of the original marriage over children born of a subsequent union. Included in the order of support will be the requirement for health care coverage for the children.
A divorce decree may also state that the wife may resume the use of her maiden name.
Divorce is always a sad situation and often a contentious one. By learning about divorce laws in Illinois, you will be more prepared to go through the process and make informed decisions about your future. |
Artical Related:
Guide to nutritional herbal supplements
The guide to liquid multivitamins
Do it yourself: a guide to home theater system wiring and cables
A guide to divorce in florida
A guide to colorado divorce




